Select Committee on Privileges Second Report


Hansard's Report of Proceedings in the House of Lords, vol 214 cols 1738-9 (11 March 1873)


Extract from the speech of the Lord Chancellor on his motion that the bill be now read a 2a

. . . Of course, he did not propose that this portion of the Bill should have retrospective action, and it would in future be always open to retiring Lord Chancellors who were un-willing to engage in these duties to retire upon the lower scale of remuneration. With regard to what had fallen from his noble and learned Friend the Master of the Rolls, he believed that some laymen, capable of performing the duties referred to by his noble and learned Friend could always be found in that House. There was no doubt that if such men, for instance, as the noble Marquess who had spoken so ably upon this very Bill (the Marquess of Salisbury) could have been induced to submit themselves to judicial training for the purpose of aiding in the dischage of the judicial functions of their Lordships' House their services would have been of great advantage. But the course of events had not led them to submit themselves to that training—to that preparation, and study, and discipline in the matter of law and attention to the proceedings of our Courts of Justice, without which the exercise, on their part, of judicial functions could not be satisfactory;—in addition to which their Lordships had engaged themselves by a self-imposed obligation not to take that course. The public had adopted the same view, and whether it was right or wrong, secession from that position was no longer possible. He then came to the question as to whether there were, or were not, some matters which ought to be carried into their Lordships' House by way of final appeal. What he desired to do in the Bill was to make the Court of Appeal generally final. It had been urged that cases involving property and interests of great magnitude ought to form an exception; but the effect of such an arrangement would be to prevent for the sake of these few and exceptional cases the services of the legal element in the House of Lords from being made available in the Court of Appeal. It would, however, be in no way inconsistent with the Bill if their Lordships should, in Committee, introduce a clause giving in such cases, when decided by a Court composed of too small a number of Judges, the right of re-hearing before a Court more numerously constituted. With regard to the question raised by the noble Marquess (the Marquess of Salisbury) respecting ecclesiastical appeals, he had felt by no means certain that, if he had proposed that ecclesiastical appeals should be submitted to civil Courts, the proposal might not only have been regarded by the clergy as a new and dangerous intrusion of the secular power into the proper province of the Church; and, if so, the odium of the proposal would have been ascribed, and justly, to the Government. If however, his noble Friend could persuade the House and the right rev. Bench that such a course would be wise, he should have no objection to it, and he believed he might say the Government would, in that case, have no objection to it. It was entirely a question to be considered in the interests of the Church; and, for his own part, he had never been able to understand how a Church whose laws were the laws of the land could expect to have the power of administering these laws, without any control or superintendence of a civil Court. It might therefore, possibly be found acceptable both to the clergy and laity to have a Court of Appeal before which ecclesiastical judgments might be reviewed. With regard, however, to Irish and Scotch appeals, there were constitutional objections to transferring that portion of their Lordships' jurisdiction to what might be represented as an English Court, unless that transfer were made by the desire or with the approval of the two countries. The Act of Union with Scotland expressly provided that no appeals from that country should be decided by an English Court. With that provision standing in the Act of Union with Scotland it would have been a more dangerous question that he should like to raise in this Bill if the Government had proposed to transfer to the new Court of Appeal the power of reviewing the decisions of the Scotch Courts without first ascertaining that such a transfer would be approved by the people of Scotland. A similar objection also applied to Ireland. It could hardly be forgotten by their Lordships that in the last century a sharp controversy between the English and Irish Bar arose out of the authority assumed by the Court of Queen's Bench in England to act as a Court of Appeal in Irish cases. That was ultimately solved in favour of the authority of the Irish House of Lords, and in the Act of Union it was provided that Irish appeals should be brought to the House of Lords of the United Kingdom. If it were now proposed to transfer Irish cases to the Court proposed to be established the Government might inadvertently and unadvisedly revive that controversy which was settled by the Act of Union, and in the every-varying currents of opinion in Ireland, with the demand for Home Rule, they might have brought a hornet's nest about them if they had raised that question. If, however, Paliament should now establish a Court such as may commend its judgments, its constitution, its wisdom, and its authority to public opinion both in Scotland and Ireland, and especially if the Court should be established in such a manner as to admit of the introduction of the best elements of the Scotch and Irish Judicatures, they might, after ripe experience, look forward eventually to the further development of that as well as of other parts of the measure. At present it seemed better that their Lordships should begin to do what they saw to be practicable, hoping that if the new Court began well all further improvements would in the result naturally follow, seeing that such improvements, once begun, had a natural tendency to increase and develope themselves.

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